[Introduced March 14, 2017;
Referred
to the Committee on Energy then the Judiciary]

A BILL to amend and
reenact §22-6A-12 of the Code of West Virginia, 1931, as amended; and to amend
said code by adding thereto a new section, designated §22-6A-12a, all relating
to requiring continuous monitoring of air, noise, dust and particulates;
requiring the operator to undertake the best available control technology if
standards for air, noise, dust or particulates are exceeded; and changing the
set back from horizontal well work activity to a residence to fifteen hundred
feet from the limit of well work disturbance.

Be it enacted by the
Legislature of West Virginia:

That §22-6A-12 of the
Code of West Virginia, 1931, as amended, be amended and reenacted; and that
said code be amended by adding thereto a new section, designated §22-6A-12a,
all to read as follows:

ARTICLE 6A. NATURAL GAS
HORIZONTAL WELL CONTROL ACT.

§22-6A-12. Well location restrictions.

(a) Wells may not be
drilled within two hundred fifty feet measured horizontally from any existing
water well or developed spring used for human or domestic animal consumption. The
center of well pads may not be located within The limit of disturbance
of a well site may not be closer than fifteen hundredsix hundred
twenty-five feet of an occupied dwelling structure, or a building two
thousand five hundred square feet or larger used to house or shelter dairy
cattle or poultry husbandry unless in the operators permit application an
estimate certified by a registered professional engineer provides that the well
work activity will avoid exceeding limits for specified parameters set out in
section twelve-a of this article. This limitation is applicable to those
wells, developed springs, dwellings or agricultural buildings that existed on
the date a notice to the surface owner of planned entry for surveying or
staking as provided in section ten of this article or a notice of intent to
drill a horizontal well as provided in subsection (b), section sixteen of this
article was provided, whichever occurs first, and to any dwelling under
construction prior to that date. This limitation may be waived by written
consent of the surface owner transmitted to the department and recorded in the
real property records maintained by the clerk of the county commission for the
county in which such property is located. Furthermore, the well operator may be
granted a variance by the secretary from these distance restrictions upon
submission of a plan which identifies the sufficient measures, facilities or
practices to be employed during well site construction, drilling and
operations. The variance, if granted, shall include terms and conditions the
department requires to ensure the safety and protection of affected persons and
property. The terms and conditions may include insurance, bonding and
indemnification, as well as technical requirements.

(b) No well pad may be
prepared or well drilled within one hundred feet measured horizontally from any
perennial stream, natural or artificial lake, pond or reservoir, or a wetland,
or within three hundred feet of a naturally reproducing trout stream. No
wellpad may be located within one thousand feet of a surface or ground water
intake of a public water supply. The distance from the public water supply as
identified by the department shall be measured as follows:

(1) For a surface water
intake on a lake or reservoir, the distance shall be measured from the boundary
of the lake or reservoir.

(2) For a surface water
intake on a flowing stream, the distance shall be measured from a semicircular
radius extending upstream of the surface water intake.

(3) For a groundwater
source, the distance shall be measured from the wellhead or spring. The
department may, in its discretion, waive these distance restrictions upon
submission of a plan identifying sufficient measures, facilities or practices
to be employed during well site construction, drilling and operations to
protect the waters of the state. A waiver, if granted, shall impose any permit
conditions as the secretary considers necessary.

(c) Notwithstanding the
foregoing provisions of this section, nothing contained in this section
prevents an operator from conducting the activities permitted or authorized by
a Clean Water Act Section 404 permit or other approval from the United States
Army Corps of Engineers within any waters of the state or within the restricted
areas referenced in this section.

(d) The well location
restrictions set forth in this section shall not apply to any well on a
multiple well pad if at least one of the wells was permitted or has an
application pending prior to the effective date of this article.

(e) The secretary shall, by
December 31, 2012, report to the Legislature on the noise, light, dust and
volatile organic compounds generated by the drilling of horizontal wells as
they relate to the well location restrictions regarding occupied dwelling
structures pursuant to this section. Upon a finding, if any, by the secretary
that the well location restrictions regarding occupied dwelling structures are
inadequate or otherwise require alteration to address the items examined in the
study required by this subsection, the secretary shall have the authority to
propose for promulgation legislative rules establishing guidelines and
procedures regarding reasonable levels of noise, light, dust and volatile
organic compounds relating to drilling horizontal wells, including reasonable
means of mitigating such factors, if necessary.

§22-6A-12a. Air, noise, light, dust.

(a) This section does not apply to or affect any well
work permitted for a horizontal well prior to the enactment of this section, or
to permit applications pending prior to the effective date of this section: Provided,
That if actual monitoring of a residence near a well to which this section is
otherwise inapplicable shows that parameters of this section are exceeded, the
secretary shall require the implementation of technologies up to the maximum
available control technology so that the parameters do not continue to be
exceeded.

(b) At each site, the operator shall set up continuous
real-time monitoring of air, noise, light and dust and particulates at the
residence or other point or points of impact that are closest or most likely to
be impacted by the well work, including traffic associated with the site. The
operator shall continuously monitor those parameters in real time. If the
monitored levels exceed any of the required parameters as determined by
continuous process control analysis more than five percent of the time during any
running twenty-four hour averaging period, the operator shall implement the
maximum available control technology available to limit the levels. The
monitored levels need to be continuously available by wireless or other
transmission to those persons or entities within fifteen hundred feet of the
limit of disturbance who request it. When levels exceed parameters, alerts
shall be sent to those persons or entities. The data shall be available to the
public for study. Unless altered by legislative rule, the parameters shall be:

(1) For noise during site construction, 70 dBA average
an hour.

(2) For noise at all other times, 55 dBA at any time.

(3) For dust, the national ambient air quality
standard level for a twenty-four hour period and no visible dust on residences
or crops.

(4) For air, the Minimal Risk Levels for chronic (365
days or more) exposure of organic compounds set by the Agency for Toxic
Substances and Disease Registry of the Centers for Disease Control and
Prevention of the United States Department of Health and Human Services.

(c) No light from artificial illumination, flares or
other sources shall shine directly on any residence or livestock or structure
containing livestock.

(d) Notwithstanding the provisions of subsection (a)
of this section if, after completion of well work, production or production
facilities cause a violation of the standards set out in subsection (b) at a
residence, then the operator shall implement the maximum available control
technology available to limit the levels that violate the standards.

NOTE: The purpose of this bill is
to implement the recommendations arising out of the studies required by the
passage of sections twelve, twenty-two and twenty-three of the Natural Gas
Horizontal Well Control Act passed by the Legislature December 14, 2011.

Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.